King v. United States, 12829.

• Citation: 144 F.2d 729
• Decision Date: 12 October 1944
• Docket Number: No. 12829.,12829.
• Parties: KING v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

144 F.2d 729 (1944)

KING v. UNITED STATES.

No. 12829.

Circuit Court of Appeals, Eighth Circuit.

October 12, 1944.

Hugh M. Bland, of Fort Smith, Ark., for appellant.

Clinton R. Barry, U. S. Atty., of Fort Smith, Ark. (Philip G. Alston, Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for appellee.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

THOMAS, Circuit Judge.

The appellant, Emery Speer King, was indicted, tried, convicted and sentenced for use of the mails in the execution of a scheme to defraud in violation of § 215 of the Criminal Code, 18 U.S.C.A. § 338, and he appeals. Reversal is sought on the grounds (1) that the evidence is insufficient to support the verdict; (2) that the prosecution was barred by the statute of limitations; and (3) that prejudicial evidence was erroneously admitted over his objections.

The indictment was in two counts. The first count charged that appellant and Raymond Clarence Fowler having devised a scheme to defraud one P. M. Claunts, a man more than 80 years of age of Hartford, Arkansas, by means of a horse race swindle, caused to be delivered by mail according to the direction thereon an envelope containing a bank draft drawn by Claunts on the First National Bank of Fort Smith, Arkansas, in the sum of $3,000 together with a collection slip of the First National Bank of Weslaco, Texas, payee of the draft. The second count charged that appellant in conjunction with Fowler, having devised the scheme described in count one, caused a bank draft for $3,000 drawn on the First National Bank of Dallas, Texas, to be mailed at Fort Smith, Arkansas, to the First National Bank of Weslaco, Texas.

The contention that the evidence is not sufficient to support the verdict was raised at the trial by motion for a directed verdict. Appellant urges that the evidence fails for two reasons: First, because he was not present when the letter referred to in count one was posted and, second, because the swindle was already consummated before the mails were used. Neither of these claims has merit. The evidence tended to show that the swindle was effected in Texas. The conspirators cooperated to induce Claunts at Weslaco, Texas, to draw on his deposit in the bank at Fort Smith, Arkansas. King participated in the entire transaction, even though he remained outside the bank door while Fowler and Claunts were inside procuring the draft and causing it to be mailed. Further, the transaction was not consummated and the purpose of the crime accomplished until the money was received and turned over to the swindlers. Until that was done Claunts retained the power to refuse to go further. The cases relied upon by appellant are not controlling.

The contention that the prosecution was barred by the statute of limitations was raised by motion to quash and by plea in bar, both of which were overruled.

Title 18 U.S.C.A. § 582 provides that:

"No person shall be prosecuted, tried or punished for an offense, not capital, * * * unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed." By § 583 it is provided, however, that: "Nothing in sections 581 and 582 of this title shall extend to any person fleeing from justice."

The record and the evidence introduced at the trial tend to show that the offense charged in the indictment occurred in November, 1940. The fraudulent scheme was devised and executed in Texas. An indictment was returned against King and Fowler by the grand jury in Arkansas on March 5, 1943. On January 10, 1944, King was brought before the court which found that the indictment was defective. Upon request of the United States Attorney leave was granted to present the case against King to another grand jury then in session, and a second indictment, the one upon which he was tried, was returned on January 13, 1944.

It will be observed that the first or defective indictment was returned within the three-year period, while the second indictment upon which King was tried and convicted was returned approximately three years and two months after the commission of the crime, or two months after the three-year period had expired. This situation gives rise to the question whether King was during the time following the commission of the crime and before the second indictment was returned a fugitive from justice within the meaning of § 583, supra, so as to toll the statute of limitations for at least two months.

The pertinent facts are that King was not present personally in Arkansas when the crime was committed. His home was in Texas and the swindle was perpetrated there. But in 1939 King and others had swindled a Mrs. D. B. Flagg out of $65,000 worth of foreign securities for which an indictment was returned against him in the Northern District of Texas on February 6, 1941. On the same day a capias was issued for his arrest and later returned "not found." On and after February 6, 1941, the agents of the Federal Bureau of Investigation searched for him and finally located and arrested him at Las Vegas, Nevada, on March 5, 1943, and he was returned to Dallas, Texas, where he pleaded guilty to the charge of swindling Mrs. Flagg.

Mrs. June Buckley testified that she met King in Fort Smith, Arkansas, in the spring of 1941, and later in the same year in Muskogee, Oklahoma. He then gave his name as John L. Ray.

Upon these facts the court found that King was a fugitive from justice and that the three-year statute of limitation was tolled. With this conclusion we agree. He was a fugitive from the justice of the federal court of Texas at least from February 6, 1941, until he was apprehended by the F. B. I. agents at Las Vegas, Nevada, on March 5, 1943, or a period of more than two years. To be a fugitive from justice, within the meaning of the Act of Congress, it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction. Roberts v. Reilly, 116 U.S. 80, 97, 6 S.Ct. 291, 29 L.Ed. 544; "The simple fact that they persons who have committed crime within a state are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice." State v. Richter, 37 Minn. 436, 438, 35 N. W. 9, 10, quoted with approval in Appleyard v. Massachusetts, 203 U.S. 222, 231, 27 S.Ct. 122, 51 L.Ed. 161, 7 Ann.Cas. 1073. It is immaterial whether King was attempting to escape justice in the federal court in Texas, or the federal court in Arkansas, or both. In Streep v. United States, 160 U.S. 128, 134, 16 S.Ct. 244, 247, 40 L.Ed. 365, the Supreme Court said: "The statute speaks generally of `fleeing from justice,' without restriction * * *. A person fleeing from the justice of his country is not supposed to have in mind the object of avoiding the process of a particular court, or the question whether he is amenable to the justice of the nation or of the state, or of both. Proof of a specific intent to avoid either could seldom be had, and to make it an essential requisite would often defeat the whole object of the provision in question." And see Brouse v. United States, 1 Cir., 68 F. 2d 294. This rule is particularly applicable in this instance. King testified in his own behalf; and on cross-examination he said that he was 57 years old and that he had made his living for the past twenty-five years, except for one short period, by swindling people. He further testified that he was under indictment in New York for using the mails to defraud and that the case had been pending since 1938 untried. The evidence shows, also, that at the time the offense described in the indictment was committed King gave his name as Huntington. Thereafter when he came into the state he assumed the name of Ray.

As to the claim that King was not in...